RIVERA v. THE STATE OF NEW YORK, #2008-029-021, Claim No. 111489

Synopsis

State found liable for damage caused by tree falling from State property onto
McLean Avenue in Yonkers. State held to have constructive notice of diseased
condition of tree because a reasonable inspection would have revealed such
condition long before it fell.

On October 15, 2003, Luis Rivera (hereinafter “claimant”)
[1] was driving alone in his vehicle eastbound on
McLean Avenue in Yonkers when the vehicle was struck by a tree, an event he
attributes to the negligence of the State of New York. Trial was bifurcated and
this decision will address only the issue of liability.

There is no material factual dispute between the parties in this matter.
Claimant testified he was driving eastbound on McLean Avenue, which he described
as a “busy, main road”. [2] McLean
Avenue bisects a trail which follows the “Old Croton Aqueduct”. As
claimant drove on McLean Avenue in the area where the trail crossed the road, a
tree struck his vehicle. He exited his vehicle and saw a tree in the middle of
the road. While at the scene, he took a series of photographs, admitted as
Exhibits 6 through 8 inclusive, and Exhibit A. Exhibits 9 through 23 are
photographs he took about one week later.

Michael Boyle was Park Manager for the 26-mile Old Croton Aqueduct Trail in
October 2003. Boyle holds an associate’s degree in forest technology and
had received training in tree inspection. He stated the trail, which averages
66 feet wide, has been operated as a State park since the 1960’s. His
responsibilities included such things as mowing grass, pruning trees and
removing hazardous trees. According to Boyle, two of his employees, Antonio
Rivera and Antonio Failla, drove the trail daily in a dump truck at about 5
m.p.h. looking for obvious problems with the trees as they drove. Although they
were equipped with chain saws, shears and pole saws, they had no equipment used
to inspect trees, such as rubber mallets or probes. Boyle stated that he also
spent time inspecting trees, sometimes driving a Jeep Cherokee and sometimes on
foot, and on occasion people would call and report trees that needed attention.
Boyle was not working on October 15, 2003, and he was not aware that a tree had
fallen on claimant’s vehicle until 2006.

Boyle testified that in 2003, Rivera was a permanent employee of the park and
Failla was a seasonal employee. Boyle did not believe that Failla had ever had
any training in tree inspection or forestry. Boyle indicated he relied on
Rivera much more than on Failla, who had started employment that June and was
still considered a novice.

Boyle was asked about a condition known as root rot. He indicated that
symptoms of root rot, such as reduced foliage, may be visible on the tree above
ground level. His understanding was that root rot does not correct itself and
is progressive from year to year. Asked if the location of a tree could be
important in determining if it was a potential hazard, he responded by stating
that a possibly diseased tree “in the middle of nowhere” presents
less of a risk than one in a “city-like environment.” Despite this
risk differential, he testified that no greater effort was made to inspect trees
at locations where the trail crossed roadways than to inspect remote trees in
the woods.

Antonio Failla testified that his job was to “maintain the trail . . .
cut the grass and clean up anything that falls on the trail.” Referring to
2003, he stated it was Rivera’s job to look at trees to try and spot any
dangerous conditions because Failla didn’t “know a thing about
it” and did not receive any training in tree inspection until “way
after” 2003. Despite that fact, when the two men drove the trail, Rivera
drove the vehicle while looking for trees or limbs that leaned over the trail.
Failla was the passenger who, at least in theory, had more opportunity to
inspect the trees more distant from the pathway.

The day before trial, Failla measured the distance from the remains of the tree
stump to the center of the trail as 34 feet, and from the stump to the southern
curb of McLean Avenue as 24 feet.

Wayne Cahilly, a graduate of the New York Botanical Gardens School of
Professional Horticulture and a long-time employee of that institution as well
as a self-employed consulting arborist, testified as an expert witness for the
claimant. After his retention, he reviewed the relevant photographs, the police
accident report and transcripts of deposition testimony in this claim. He
visited the accident location on March 5 and April 6, 2008, during which times
he examined the remains of the subject tree, which he identified as an ailanthus
altissima. Cahilly’s opinion was that the tree, which had “snapped
off at ground level,” did not have a normally formed base, gradually
widening as it approached ground level. It lacked a buttress area or
“outward sweep” between the trunk and the root system (see Exhibits
13 and 20). He explained that prior to falling the tree would have looked like
a utility pole coming straight from the ground. This probably resulted from
soil being deposited around the tree so as to, in effect, raise the ground
level.

Cahilly’s opinion was that the tree had been infected with root rot, a
condition where organisms invade the root system and cause the wood to break
down. He explained that root rot does not initially cause any outward
manifestation, but if it persists one would observe a reduced rate of growth and
branches dying off in the upper portions of the tree. Examining the growth
rings on the remains of the tree in question, he found that its rate of growth
over its final 20 years was “extraordinarily slow.” Based on this
examination, he testified that he would expect that the tree would have had
obvious manifestations that it was struggling, including thin and reduced
foliage and dead wood. Reviewing photographs taken the date the tree fell
(Exhibits 6, 7 and 8), Cahilly stated that the tree remains showed a lot of dead
wood but very little foliage, consistent with his conclusion that the tree was
severely unhealthy prior to falling.

When he examined the base of the tree, he found evidence of a longstanding (in
excess of five years) carpenter-ant infestation which he described as a
secondary problem resulting from the ants moving in on diseased and decayed wood
at the base of the tree (see Exhibits 9 and 24). He also noted that the tree
leaned towards the roadway, with a bow in the trunk indicating that it had
leaned for a long period of time. The lack of a buttress, combined with the
lean, should have been a trigger for a close inspection of the tree. Cahilly
stated that the lean was a natural condition not necessarily indicating anything
wrong with the tree. However, he noted that trees that lean compensate by
growing a stronger root system on the side opposite the lean. With a tree whose
root system was degraded, such compensatory growth would be compromised.

Cahilly testified that risk analysis consists of examining a tree and adjacent
area considering the following factors: (1) what is the largest part of the tree
likely to fail; (2) under what circumstances is the tree likely to fail; (3) in
which direction is the tree likely to fall; and (4) what is likely to be in the
area where the tree will fall. Leaning trees most likely fall in the direction
of the lean, an area he described as the “target zone.” When
conducting a risk inspection, one looks for hidden indicators of a problem. In
this case, he asserted that the sparse foliage on a tree lacking a buttress
should have generated an inquiry into the cause of that condition beyond mere
visual inspection. He suggested the use of a mallet to systematically tap the
trunk up and down and around the trunk while listening for an audible difference
between healthy wood as opposed to unhealthy wood. He stated that a tree with
root rot would resonate differently as the inspector tapped lower on the trunk.
The entire process would take less than a minute. His opinion was that such an
inspection of this tree would have revealed a change in sound at about two feet
above ground level, and he asserted that such an inspection was standard
practice. He also described the use of a sharpened piece of steel, similar to
an awl, that is inserted into the ground to probe the base of the tree,
particularly for trees like this one, whose base is covered by dirt. In the
case of a tree with root rot, the probe will reveal evidence of softened or
spongy wood below the current ground level.

Looking at a photograph of a tree adjacent to the one that fell on
claimant’s vehicle (Exhibit 26), Cahilly identified it as a three-trunked
wild black cherry tree that was severely infected with root rot, with evidence
that a large branch had been sawed off about five feet above ground level. He
testified that the tree had been infected for at least ten years, and he opined
that any reasonable inspection would have revealed the obviously diseased
condition of that tree.

Speaking generally about standards for conducting risk assessments of trees,
Cahilly stated that areas with the “largest number of soft targets”
should be inspected before other areas, with trees having a greater number of
soft or vulnerable targets having the highest priority for inspection. He
identified a “hard target” as something like a building, while the
term “soft target” is a euphemism for people. Cahilly’s
testimony in this regard was not impaired on cross-examination.

Cahilly’s conclusion was that the condition of the tree that fell on
claimant’s vehicle would have been apparent on any reasonable inspection
and that it should have been removed prior to its failure. His opinion was that
a drive-by inspection provides the opportunity for the briefest visualization of
only one side of a tree and risks overlooking very extensive structural deficits
such as existed in this case. As a result, it is Cahilly’s opinion that
these inspections, without any other method, are insufficient and negligent in
an area rich in “soft targets”.

Lewis Bloch, who holds a degree in ornamental horticulture from the University
of Missouri and is a certified arborist, testified as an expert witness on
behalf of defendant. He was retained by the State in May 2007 and reviewed the
pleadings, accident report, photographs, weather reports and deposition
transcripts. He did not inspect the remnants of the tree in question here,
explaining that such an inspection would have served little purpose three years
after the tree fell.

His opinion was that the tree “failed” because of root rot which
festered over a period of time and eventually led to decay in the trunk of the
tree, resulting in the tree falling. Asked if there were any visible signs of
decay as of October 2003, he stated that the decay would have been evident if
someone had been close to the tree, but would not have been visible on a
drive-by inspection. Bloch’s opinion was that the root rot existed for at
least 10 years and would have resulted in visible or detectable manifestations
for at least two years prior to October 2003. He also indicated that the
problem would not have been evident from viewing the canopy of the tree; that it
likely had a lot of foliage with a few dead limbs. It was unlikely that the
tree would have attracted attention on a drive-by inspection, or by viewing it
from either the sidewalk (about 24 feet away) or the trail itself (about 34 feet
away).

Bloch testified that most trees in their natural state lean one way or another
and this was not, per se, indicative of a problem. He also stated that root rot
is not caused by carpenter ants, but rather that the ants infest decayed areas
of the tree.

On cross-examination, Bloch acknowledged that although a drive-by viewing of
the tree would not have indicated any problem, a close-up visual inspection
would have revealed the decay in the tree’s roots and lower trunk. Asked
if the drive-by inspections conducted in this case were
“reasonable,” Bloch responded that he did not know, but indicated
that his opinion would be influenced if he knew that the passenger in the
drive-by inspection did not have any arboreal training. He testified that
someone without such training should not be doing tree inspections, thus
agreeing with claimant that defendant’s acknowledged procedure was
inappropriate.

Based on the conclusion that it is too time-consuming to individually inspect
every tree, Bloch opined that, in general, drive-by inspections are a reasonable
way for municipal authorities to manage parks. However, he did agree that they
are best used as a “preliminary survey tool,” and that they should
be supplemented with individual inspections where indicated. He also agreed
that one factor to consider in risk assessment and inspection standards is the
location of the tree. He stated it was standard practice to ask the question
“if the tree fell, what would it hit”? His opinion was that
authorities should take a “closer look” at trees adjacent to
roadways than at more remote trees in the woods, and that it was not reasonable
to treat all trees in the park the same. He was asked if an inspection from the
trail was satisfactory in the case of a tree within striking distance of a
sidewalk and bus stop and which was partially obscured from the trail. He
responded: “I would have to go inspect every tree that might hit the
road” thus driving a stake into the heart of defendant’s case.

There was no dispute between the parties that the tree in question fell and
struck claimant’s vehicle. Claimant’s and defendant’s
respective experts agreed that it had been infected with root rot for a period
of many years prior to falling and that close inspection would have revealed
this condition well before claimant’s accident. There was also no dispute
as to the method actually utilized by defendant’s employees to inspect the
trees on the State park land; i.e., periodic drive-by inspections. The sole
point of disagreement was whether such a regimen was sufficient and reasonable,
or whether the lack of a closer, individual inspection of trees near public
roads in general, and of this tree in particular, was insufficient and amounted
to a breach of defendant’s duty of reasonable care.

The State of New York, like any other landowner, has the duty of maintaining
its property in a reasonably safe condition, taking into account all the
circumstances, “including the likelihood of injury to others, the
seriousness of the injury, and the burden of avoiding the risk”
(Preston v State of New York, 59 NY2d 997, 998 [1983]). Nevertheless, it
is not automatically liable when a tree falls from its property, causing injury.
Like any other negligence case, a finding of liability requires proof that the
landowner had actual or constructive notice of the alleged defective condition
of the tree (Ivancic v Olmstead, 66 NY2d 349 [1985]). Where, as here,
there is no proof of actual notice, liability based on constructive notice must
be based on the conclusion that “reasonable inspection would have revealed
the dangerous condition of the tree” (Harris v Village of E. Hills,
41 NY2d 446 [1977]).

Both claimant’s expert and defendant’s expert agreed that the decay
in the tree’s roots and lower trunk would have been evident on a close-up
individual inspection of the tree for at least two years prior to the
accident. They also agreed that the primary consideration in determining
whether an individual inspection was warranted was what the tree was likely to
strike should it fall. Due to this tree’s height, location and lean, it
was apparent that it would land on McLean Avenue and the adjoining sidewalk.
McLean Avenue is a major east/west thoroughfare in the southern end of the City
of Yonkers.

Defendant’s expert opined, logically, that an individual inspection was
not feasible for all trees in municipal parks and that drive-by inspections were
a reasonable method for the State to manage this 26-mile-long trail.
Nevertheless, he noted that such inspections should only be regarded as
preliminary, supplemented by individual inspections where warranted. In
particular, he agreed that individual inspections were warranted for all trees
that would hit a roadway if they fell. The corroborative testimony of
both experts in this regard was the most persuasive and inescapable
evidence in support of a finding of liability herein.

Other factors also support such a finding, including claimant’s
expert’s testimony that the tree likely showed evidence of decay for
several years, as evidenced by the large number of leafless twigs on the roadway
after it fell and the corresponding smaller number of limbs with foliage, the
lean of the tree, which virtually insured that it would fall onto McLean Avenue,
and the seemingly perfunctory nature of the drive-by inspections described by
defendant’s employees which, in 2003, primarily relied on either a new
employee with admittedly no idea of what to look for on a tree inspection, or an
employee with greater experience whose attention was diverted by driving the
vehicle. The concept that the person who knows nothing about trees inspects
them while the more knowledgeable employee drives would be comedic were it not
so potentially tragic.

A final factor considered by the court is the ease or difficulty of mitigating
the risk. [3] Mr. Boyle pointed out that the Old
Croton Aqueduct trail is 26 miles long by an average of 66 feet wide, thus
making it impossible to inspect every tree within the park. However, as both
experts and Mr. Boyle testified, trees in the proximity of public roads
present greater risk particularly where the public roads are high traffic urban
thoroughfares. The Court must logically then question why such trees are not
subject to a higher level of inspection, especially where such higher inspection
requires “approximately one minute per tree”. Defendant’s
expert prescribed the area requiring closer inspection when he testified that:
“I would have to go inspect every tree that might hit a road”. Thus
the resources necessary to perform a close-up inspection of a tree that
threatens to hit a public road are in no way excessive when viewed against the
risk.

Based on the foregoing, the court finds that the inspection regimen established
at trial fell far short of fulfilling the State’s duty of reasonable care
with respect to trees that were likely to fall on McLean Avenue. The court
further finds that had this tree been the subject of an individual inspection,
as called for by both experts, at any time within at least two years
prior to October 2003, the damage would have been apparent and the tree would
have been removed. The accident was, therefore, avoidable by the State.

Accordingly, the court finds in favor of the claimants on the issue of
liability and the Clerk of the Court is directed to enter an appropriate
interlocutory judgment. A damages trial will be scheduled upon the filing of
this decision.

May 28, 2008White
Plains, New York

HON. STEPHEN J. MIGNANOJudge of the Court of
Claims

[1].The claim of Luis Rivera’s wife, Maria
Rivera, is for the loss of services and consortium of her husband.

[2].Unless otherwise indicated, all quotations
are from the electronically recorded trial record.